June 26, 2003

The Delaware courts have been

The Delaware courts have been amazing busy issuing opinions over the past few weeks that appear to be dramatically changing the corporate governance landscape – the latest is from the Delaware Supreme Court in Krasner v. Moffett.

This opinion reverses the dismissal of a stockholder class action challenging the merger of Freeport-McMoRan Sulphur and McMoRan Oil & Gas into McMoRan Exploration Co. The Chancery Court granted the defendants’ motion to dismiss on the grounds that the merger, which did not involve a majority stockholder, had been negotiated by a special committee of independent directors and, therefore, the business judgment rule applied. The Supreme Court reversed on the ground that it was reversible error to dismiss the complaint under Rule 12(b)(6) at the pleading stage – and that a factual record needed to be developed to determine what standard of review applies (i.e., whether the business judgment rule or entire fairness standard applies). The Supreme Court reached this conclusion even though the plaintiffs did not plead facts establishing that the special committee members were not independent.

I blog this as i prepare to take a week off in Yellowstone (my first time) and am happy to note that Sharon Hendricks from the Venture Law Group will be our guest blogger for next week. I’m sure Sharon will give you the “skinny” on how mandatory Section 16 e-filing fares in its first few days. Enjoy!